Chapter 1 Damages

 
§1.01 Damages Arising out of Bodily Injury

 
[1] Types of Damages for Negligence Generally

 
[2] Consortium (Spousal and Filial)

 
[3] Loss of Wages of Non-Injured Spouse

 
[4] Impairment of Earning Capacity

 
[5] Distinction between General and Special Damages

 
[6] Future Damages

 
[7] Proof Generally

 
§1.02 Causation

 
[1] Mitigation of Damages

 
[2] Prior Condition—Aggravation

 
[3] Subsequent Accident Caused by Victim's Infirmities from First Accident

 
§1.03 Collateral Source Rule

 
§1.04 Damage to Property

 
[1] Loss of Use of Motor Vehicle

 
[2] Insurance Department Regulations Regarding Motor Vehicle Settlement

 
[3] Motor Vehicle Diminution of Value

 
§1.05 Punitive Damages

 
[1] Statutory Law Defining Punitive Conduct / Applicability to Insurers / Drivers

 
[2] "Knowing and Reckless Disregard" Standard for Intoxicated Drivers

 
[3] Assessment of Punitive Damages (Utah Case Law Prior to Campbell 2003)

 
[4] The Campbell 2003 Decision

 
[5] Utah Case Law after Campbell 2003

 
[6] Vicarious Liability for Punitive Damages

 
[7] Punitive Damages in Wrongful Death Actions

 
[8] Part of Punitive Damage Award Payable to State of Utah

 

 
Chapter 2 Evidence and Procedure

 
§2.01 Admissibility / Proof

 
[1] Crash Films

 
[2] Flight from Scene of Accident

 
[3] Fact of Liability Insurance

 
[4] Prior Settlements / Offer to Pay or Payment of Medical Bills

 
[5] Statement of Injured Person

 
[6] Surveillance Videos

 
[7] Tax Consequences of Personal Injury Award

 
[8] Testimony of Lay Witnesses With Respect to Distance and Speed

 
[9] Traffic Citations / Convictions / Traffic Accident Reports

 
[10] Welfare Payments to Prove Preexisting Medical Condition

 
[11] Prior Auto Accidents to Prove Likelihood of Auto Accident

 
[12] Seat Belt and Child Restraint Device Non-Usage

 
[13] American Trucking Association's Safety Guidelines Handbook

 
[14] Medical Bill Proof Requirements

 
[15] Annuity Calculations and Costs

 
[16] Accident Reconstruction Expert Testimony

 
[17] Ex parte Communications between Plaintiff Doctor and Defense Counsel

 
§2.02 Discoverability

 
[1] Insurance Company File

 
[2] Insurance Policy / Liability Limits

 
§2.03 Presumption / Judicial Notice

 
[1] Judicial Notice Regarding Vehicle Headlights

 
[2] Presumption of Due Care of Driver Where Driver Dies or Has Amnesia

 
[3] Presumption Upon Receipt of Fax with Fax Confirmation

 
§2.04 Procedure

 
[1] Garnishment of Liability Insurer's Obligation by Third Party

 
[2] Joinder of Insurance Companies in Actions Against Insured Tortfeasors and Uninsured Motorists

 
[3] Propriety of Default Judgment While Negotiating With Adjuster

 
[4] Service of Process on Insurance Company

 
[5] Service of Process on Nonresident Motorist or Absent Resident Motorist

 
[6] Preservation of Vehicle for Prima Facie Case of Auto Strict Liability

 
[7] Unavoidable Accident Jury Instruction

 
[8] Juror Voir Dire Regarding Juror Connection to Insurance Industry and Juror Knowledge of Tort Reform

 
§2.05 Availability of Traffic Accident Report Prior to Action

 
§2.06 Medical Provider Records Request

 

 
Chapter 3 Imputed Liability

 
§3.01 Agency / Master and Servant / Independent Contractor

 
[1] Importability of Workers' Compensation Law to Tort Law and Vice Versa

 
[2] Liability of Employer for Ride Sharing Arrangements

 
[3] Master and Servant Generally

 
[4] Right to Control and Independent Contractor

 
[5] Loaned Servant

 
[6] Scope and Course of Employment

 
[a] Test for Scope and Course of Employment

 
[b] Coming and Going Rule

 
[i] Dual Purpose Exception to Coming and Going Rule

 
[ii] Special Errand and Employer-Provided Transportation Exceptions to Coming and Going Rule

 
[iii] Scope and Course of Employment of Employee Using Employer Motor Vehicle

 
[7] Employer Liability for Independent Contractor: Retained Control / Non-Delegable Duty / Inherently Dangerous

 
[8] Presumption of Control and Agency Between Owner, Driver, and Spouse

 
[9] Family Member Agency and Motor Vehicles / Family Purpose Doctrine

 
§3.02 Bailment

 
§3.03 Joint Venture

 
[1] Definition of Joint Venture

 
[2] Joint Venture Arising out of Use of Motor Vehicle—Case Summaries

 
§3.04 Partnership

 
§3.05 Statutory Imputed Liability

 
[1] Personal Liability for Signing Drivers License Application of Minor

 
[2] Vehicle Owner's Liability for Permitting Minor to Operate Motor Vehicle

 
[3] Parents' Liability for Minor Damaging Motor Vehicle

 
§3.06 Unincorporated Association Liability

 

 
Chapter 4 Intoxication

 
§4.01 Motor Vehicle Operation Under the Influence of Alcohol / Criminal Statute / Proximate Cause / Evidence

 
§4.02 Dramshop Liability

 
[1] Utah Dramshop Statute

 
[2] Dramshop Case Law

 
[a] Pre-Dramshop Act Case Law

 
[b] Post Drampshop Act Case Law

 
[i] Dramshop Act Strict Liability / No Common Law Dramshop Cause of Action.

 
[ii] Exceptions to Rule of No Common Law Dramshop Action

 
§4.03 Common Law Dramshop Action by Person receiving Alcohol Against Provider

 
§4.04 Dramshop Action under Alcoholic Beverage Control Act

 
§4.05 Governmental Immunity

 

 
Chapter 5 Liens, Subrogation, and Reimbursement

 
§5.01 Attorney Lien

 
§5.02 Child Support Lien

 
§5.03 Crime Victims' Reparations Act Lien

 
§5.04 ERISA Reimbursement

 
[1] Federal Law Preemption of Self-Funded Plans

 
[2] Federal Law Preemption of Insured Plans

 
[3] Federal Law Preemption of Utah Law

 
[4] Federal Law Governing Self-Funded Plans

 
[5] Plan Enforcement of Reimbursement Provisions

 
§5.05 FEHBA Reimbursement

 
§5.06 Hospital Lien

 
§5.07 Medicaid Reimbursement

 
[1] Utah Medicaid Reimbursement Statute

 
[a] Nature of Medicaid's Right to Reimbursement

 
[b] ORS Notice of Lien / Effect of Lien / Right to Intervene and Maintain Action

 
[c] Recipient Obligation to Provide Notice to ORS / Effect on ORS

 
[d] Attorney Fees and Costs / ORS Collection Agreement / Attorney Misconduct

 
[e] Effect of ORS Refusal to Enter into Attorney Collection Agreement

 
[f] Attorney Trust Account Duties / Penalty for Non-Compliance

 
[g] Statute of Limitations Applicable to ORS Actions

 
[2] Abolition of Medicaid First Dollar Recovery by U.S. Supreme Court

 
[3] Validity of Utah Case Law after Statutory Revision and Ahlborn

 
[4] Constitutionality of Medicaid Reimbursement Statute

 
[5] Medicaid Lien Avoidance

 
§5.08 Medicare Reimbursement

 
[1] Regular Medicare Reimbursement

 
[a] Medicare Right of Reimbursement Against Any Personal Injury Recovery

 
[b] Attorney / Client Exposure to Reimbursement

 
[c] Medicare Not Required to Provide Notice

 
[d] Reductions for Damages Allocation, Comparative Negligence, and Causation

 
[e] Waiver of Lien for Hardship

 
[f] Attorney Fees and Costs

 
[g] Medicare Statute Preemption of State Law

 
[h] Applicability of Collateral Source Rule to Medicare

 
[i] Limitations on Reimbursement

 
[j] Medicare "Set-Aside"

 
[k] Insurer Statutory Duty to Provide Claim Information to Secretary of Health and Human Services (MMSEA)

 
[2] Medicare HMO and Choice Plan Reimbursement Rights

 
[a] Introduction

 
[b] Medicare HMO Statute

 
[c] Medicare Choice Statute

 
[d] Medicare HMO / Choice Preemption of State Law

 
§5.09 Utah Equitable Rules

 
[1] Equitable Subrogation

 
[2] Made Whole Rule

 
[a] Explanation of Made Whole Rule

 
[b] Contractual Modification of Made Whole Rule

 
[c] Utah Insurance Department Position on Made Whole Rule

 
[3] Effect of Release on Subrogor Where Liability Insurer Has Notice

 
[4] Common Fund Doctrine

 
§5.10 Workers' Compensation Reimbursement

 
[1] Workers' Compensation Reimbursement Statute

 
[2] Carrier Right to Intervene or Maintain Action

 
[3] Carrier Reimbursement Right for Employer Reinsurance Fund Payment

 
[4] Carrier Obligation to Pay Attorney Fees and Costs

 
[5] Carrier Reimbursement Right With Regard to Wrongful Death Recovery

 
[6] Necessity of Labor Commission Approval of Third-Party Settlements

 
[7] Carrier Reimbursement From UM / UIM Settlement

 
§5.11 Attorney and Medical Provider Consensual Liens / Notice of Assignment / Estoppel

 
§5.12 Public Employees Health Program (PEHP) Reimbursement

 

 
Chapter 6 Auto Accident Negligence

 
§6.01 Definition of Negligence Generally

 
§6.02 Comparative Negligence Statute

 
§6.03 Auto Passenger Comparative Negligence (formerly known as "Assumption of Risk")

 
[1] Scope and Cross Referencing

 
[2] Standard of Care of Passenger Generally / Assumption of Risk Doctrine Abolished

 
[3] Common Law Duties of Passengers

 
[4] Statutory Duties of Passengers

 
[5] Summaries of Cases Regarding Passenger Comparative Negligence

 
§6.04 Passenger Liability for Wrongful Action or Inaction

 
[1] Passenger Wrongful Failure to Act

 
[2] Passenger Wrongful Affirmative Action

 
§6.05 Key Left in Ignition Cases (Liability of Vehicle Owner or Operator)

 
§6.06 Applicable Standards of Care Regarding Minors Involved in Auto Accidents

 
[1] Standard of Care for Minor Operating Motor Vehicle

 
[2] Standard of Care for Adult Operating Motor Vehicle in Presence of Minors

 
[3] Standard of Care for Minor Pedestrian

 
§6.07 Negligent Supervision (Comparative Negligence of Parent of Injured Child Pedestrian)

 
§6.08 Negligent Entrustment of Motor Vehicle

 
§6.09 Negligent Infliction of Emotional Distress in Auto Accidents

 
§6.10 Proximate Cause

 
§6.11 Rescue from Auto Accident Aftermath

 
[1] Liability of Tortfeasor for Injured Lay Rescuer

 
[2] Liability of Tortfeasor for Injury to Professional Rescuer

 
[3] Good Samaritan Statute (Liability of Rescuer)

 
§6.12 Res Ipsa Loquitur / Applicability to Auto Accidents

 
[1] Introduction.

 
[2] Elements of Res Ipsa Loqitur

 
[3] Summaries of Auto Accident Cases Dealing with Res Ipsa Loquitur

 
§6.13 Right to Assume Due Care on Part of Other Drivers and Pedestrians

 
§6.14 Sudden Peril Rule

 
[1] Explanation of the Rule

 
[2] Summaries of Auto Accident Cases Involving Sudden Peril Rule

 
§6.15 Violation of Safety Statute Rule

 
§6.16 Spousal and Parental Tort Immunity

 
[1] Spousal Immumiy

 
[2] Parental Immunity

 
§6.17 Splitting Negligence Cause of Action in Auto Case (Bodily Injury / Property)

 

 
Chapter 7 Statute of Limitations

 
§7.01 Limitations for Specific Causes of Action

 
[1] Negligence

 
[2] Personal Injury Protection (PIP) Benefits

 
[3] Uninsured Motorist Coverage

 
[4] Underinsured Motorist Coverage

 
[5] Wrongful Death

 
[6] Products Liability

 
[7] Survival Actions

 
[8] Assault/Battery/Recklessness

 
§7.02 Defenses to Limitations

 
[1] Tolling—Minority and Incompetency

 
[2] Estoppel Against Insurance Company / Waiver

 
[3] Discovery Rule

 
§7.03 Limitations for Utah Governmental Entities

 
[1] Filing Notice of Claim and Complaint

 
[a] Introduction

 
[b] Time Periods for Filing Notice of Claim and Complaint

 
[c] Notice of Claim

 
[i] Notice Contents Generally

 
[ii] Brief Statement of the Facts

 
[iii] Nature of the Claim Asserted

 
[iv] Damages Incurred by the Claimant as Far as They Are Known

 
[d] Prerequisites for Claim Against Governmental Employee

 
[e] Delivery of Notice of Claim

 
[f] Governmental Official to Whom Notice of Claim Must Be Delivered

 
[2] Filing Notice of Claim With Public Transit District

 
[3] Notice of Claim Strict Compliance Standard

 
[a] Strict Compliance Standard and History

 
[b] Exceptions to Strict Compliance—Estoppel

 
[i] Estoppel Prior to 1998 Amendment

 
[ii] Estoppel After the 1998 Amendment: Rule of Wheeler v. McPherson

 
[iii] Estoppel after 2004 Revision of Governmental Immunity Act

 
[c] Exception to Strict Compliance—"Piggy Back" / "Pretty Strict Compliance"

 
[4] Tolling (Minority and Incompetency )

 
[5] Claims Against Governmental Entities for PIP Benefits

 
[6] Discovery Rule

 
§7.04 Insurance Department Regulations

 

 
Chapter 8 Statutory Coverages, No-Fault Act, and Threshold Law

 
§8.01 Liability Coverage Statutory Requirements

 
[1] Minimum Coverage Limits / Vehicles Required to Have Coverage

 
[2] Non-Resident Drivers

 
[3] Governmental Entities and Self-Insurers

 
[4] Required Liability Policy Provisions

 
[a] Introduction

 
[b] Persons Covered

 
[i] Named Insured

 
[ii] Permissive Users: Primary Permittee

 
[iii] Permissive Users: Secondary Permittee

 
[iv] Permissive Users: Passengers as Permissive Users

 
[v] Resident Relatives

 
[c] "Arising out of The Ownership, Maintenance or Use" Clause

 
[d] Step Down Coverage

 
[i] Permissive User

 
[ii] Household Exclusion

 
[iii] Auto Business Exclusion

 
[iv] Alcohol and Illegal Drug Exclusion

 
[v] Intentional Act Exclusion

 
[e] Unforeseeable Paralysis, Seizure, or Unconscious Condition

 
[f] Prorating with Other Liability Insurance

 
[g] Workers' Compensation Liability Exclusion

 
[h] Insurer's Right to Settle Claim / Duty to Defend / Subrogation Between Insurers

 
[i] Insurer's Right to Settle

 
[ii] Insurer's Duty to Defend

 
[i] Subrogation Between Insurers

 
[i] Subrogation Rights of Secondary Liability Carrier

 
[ii] Subrogation Rights Where Both Liability Carriers Contesting Coverage

 
[j] Defense of Lack of Cooperation

 
[k] Named Driver Exclusion

 
[l] Operator's Policy

 
[m] Care, Custody or Control Exclusion

 
[n] Liability Claimant with No PIP—Liability Claim Not to Be Reduced

 
[o] Arbitration of Auto Personal Injury Claims

 
[i] Claims between Family Members

 
[ii] Claims Not Involving Family Members

 
[p] Presumptive Personal Representative (Streamlined Wrongful Death Settlement)

 
[5] Auto Policies Exempt from Statutory Requirements

 
§8.02 Personal Injury Protection Coverage (PIP) Statutory Requirements

 
[1] Vehicles Required to Be Covered by PIP

 
[2] Political Entities / Self-Insurers / Nonresident Drivers Required to Have PIP

 
[3] Persons Covered and Not Covered by PIP

 
[4] Coverage—Motorcycle Owners / Operators / Passengers

 
[5] PIP Coverage Exclusions

 
[6] Effect of Workers' Compensation on PIP

 
[7] Primary PIP Coverage

 
[8] Stacking of PIP Coverage

 
[9] Assignment of PIP Medical Benefits by Insured to Medical Provider

 
[10] PIP Benefits

 
[a] Medical Expenses

 
[b] Loss of Income Benefit

 
[c] Loss of Services Benefit

 
[i] Statutory Law

 
[ii] Necessity of Expenses Actually Being Incurred

 
[iii] Availability of PIP Loss of Services Where No Employment Disability

 
[iv] Loss of Services Not limited to $20 for a Particular Day

 
[d] Death and Funeral Benefits

 
[11] Statutory Action for PIP Benefits Recovery / Attorney Fees / Interest

 
[12] Reimbursement Rights of PIP Insurers

 
[a] Personal Injury Protection (PIP) Reimbursement Statute

 
[b] PIP Reimbursement from PIP Insured's Personal Injury Settlement

 
[c] Exception to Rule of No PIP Reimbursement from Liability Settlement

 
[d] Availability of PIP Benefits After Execution of Liability Release

 
[e] PIP Reimbursement After Liability Litigation Commenced

 
[f] Summaries of PIP Reimbursement Cases

 
[g] PIP Reimbursement Rights When Liability Policy Limit Tendered

 
§8.03 No-Fault Threshold

 
[1] No-Fault Threshold Requirements Generally

 
[2] Permanent Disability or Impairment Based on Objective Findings

 
[3] Availability of Threshold Defense to Uninsured Motorist Defendant

 
[4] Applicability of Threshold to Uninsured Motorist Claims

 
[5] Applicability of Threshold to Motorcycle Owners / Operators / Passengers

 
[6] Effect of Meeting Threshold After Filing Liability Action

 
[7] Accumulating Medical Expenses Solely to Meet Threshold

 
[8] Constitutionality of Threshold

 
§8.04 Uninsured Motorist Coverage

 
[1] Personal Injury UM Coverage

 
[a] Persons Covered Under UM Coverage

 
[b] Definition of Uninsured Motor Vehicle

 
[c] Damages Recoverable ("Legally Entitled to Recover")

 
[d] Amount of UM Coverage Required

 
[i] Non-Governmental / Non-Self-Insured Entities

 
[ii] Self-Insured / Governmental Entities.

 
[iii] Entities Providing Transportation Services

 
[e] Workers' Compensation Subrogation Against UM Recovery

 
[f] Medical Payors' Subrogaton Against UM Recovery (Health Insurers, ERISA, Medicare, Medicaid and FEHBA)

 
[g] Felonies and Misdemeanors—Coverage Not Available

 
[h] Phantom Vehicles

 
[i] Stacking of UM Coverages

 
[i] Inter-Policy Stacking Governed by Statute

 
[ii] Inter-Policy Stacking Not Governed by Statute

 
[iii] Inter-Policy Stacking Within a Single Household

 
[iv] Intra-Policy Stacking

 
[j] Portability of UM Coverage / Public Policy Considerations

 
[i] Introduction

 
[ii] Newly Acquired / Replacement Vehicles

 
[iii] Non-Owned Vehicles

 
[iv] Motorcycles

 
[k] Arbitration of UM Claims

 
[l] Insured Action Against Uninsured Motorist—Joinder/Intervention of Carrier

 
[m] UM Coverage and Workers' Compensation Exclusive Remedy

 
[n] Coverage Afforded by Omnibus Clause of UM Commercial Auto Insurance

 
[o] Common Carriers and UM Coverage.

 
[p] Presumptive Personal Representative (Streamlined Wrongful Death Settlement)

 
[2] Uninsured Motorist Property Damage Coverage

 
§8.05 Underinsured Motorist Coverage

 
[1] Persons Covered under UIM Coverage

 
[2] Definition of Underinsured Motor Vehicle

 
[3] Damages Recoverable under UIM Coverage ("Legally Entitled to Recover")

 
[4] Amount of UIM Coverage Required

 
[a] Non-Governmental and Non-Self-Insured Entities

 
[b] Self-Insurers / Governmental Entities

 
[5] Workers' Compensation Subrogation Against UIM Recovery

 
[6] Medical Payors' Subrogaton Against UIM Recovery (Health Insurers, ERISA, Medicare, Medicaid, and FEHBA)

 
[7] Felonies and Misdemeanors—UIM Coverage Not Available

 
[8] UIM Coverage Set Off Against Liability Coverage

 
[9] Stacking of UIM Coverages

 
[a] Inter-Policy Stacking Governed by Statute

 
[b] Inter-Policy Stacking and Injured Pedestrians

 
[c] Inter-Policy Stacking Not Governed by Statute

 
[d] Inter-Policy Stacking within a Single Household

 
[e] Intra-Policy Stacking

 
[10] UIM Coverage—Date of Inception of the Loss

 
[11] UIM Claim Prerequisites to Settling Liability Claim/UIM Subrogation

 
[a] UIM Settlement Dilemma

 
[b] Rights of UIM Carrier and UIM Claimant

 
[c] Effect on UIM Claim Where No Notice Given to UIM Carrier

 
[12] Effect of Survival Statute on UIM Claims

 
[13] UIM Coverage for Wrongful Death of Non-Resident Relative

 
[14] Arbitration of UIM Claims

 
[15] Coverage Afforded by Omnibus Clause of UIM Commercial Auto Insurance

 
[16] Presumptive Personal Representative (Streamlined Wrongful Death Settlement

 
[17] Regular Use Exclusion (Non-Owned Vehicle)

 

 
Chapter 9 Conflict of Laws

 
§9.01 Utah's Conflict Rules Determine What Jurisdiction's Laws Will Apply

 
§9.02 Utah's Procedural Rules Apply

 
§9.03 Utah Law Determines the Characterization of the Action (Contract or Tort)

 
§9.04 Substantive Law of State with Most Significant Contacts Will Apply

 
§9.05 Most Significant Contacts Analysis for Tort Actions

 
§9.06 Most Significant Contacts Analysis for Contract Actions

 
§9.07 Auto Accident Cases Dealing with Conflict of Laws Issues

 
[1] Tort Action Cases

 
[2] Contract Action Cases

 

 
Chapter 10 Survival of Actions

 
§10.01 Utah Survival of Actions Statute

 
§10.02 UIM Claims of Heirs of Deceased

 
§10.03 Auto Accident Tortfeasor Dying Before Victim Dies

 
§10.04 Auto Accident Tortfeasor Who Dies Before the Accident

 
§10.05 Property Damage

 

 
Chapter 11 Settlements and Releases

 
§11.01 Third Party—Victim Releasing Tortfeasor

 
[1] Release Settling Liability Carrier's PIP Reimbursement Obligation

 
[2] Avoidance of Release Executed Shortly After Accident or Release From Hospital

 
[3] Insurance Department Regulations Governing Liability Releases

 
[4] General Rules of Release Construction

 
[5] Common Law Avoidance of Releases

 
[a] Mutual Mistake of Fact

 
[b] Mental Capacity

 
[c] Misrepresentation and Fraud

 
[d] Inadequate Consideration

 
[e] Ambiguity

 
[f] Standard of Proof for Release Avoidance

 
[6] Insurer Entitled to a Credit When Release Set Aside

 
[7] Liability Release Releasing Victim From Liability to Insured

 
[8] Vicarious Liability / Non-Vicarious Liability Releases—Special Rules of Construction

 
[a] Non-Vicarious Liability

 
[b] Vicarious Liability

 
[c] Trap for Unwary—Contrasting the Two Rules

 
§11.02 First Party—Insured Releasing Insurer

 
§11.03 Efficacy of Verbal Settlements

 
§11.04 Settlements with Minors

 
[1] Settlement of Minor Personal Injury Claim Not Exceeding $10,000

 
[2] Summary of Statutory Procedures for Court Approval off Minor Settlement

 
§11.05 Pre-Injury Releases

 
§11.06 Transfers of Structured Settlements

 

 
Chapter 12 Governmental Immunity, Duties, and Liabilities

 
§12.01 Notice of Claim

 
§12.02 Utah Governmental Immunity Analysis

 
[1] Governmental Immunity Analysis / History / Current Law

 
[2] Viability of Older Cases dealing with Specific Governmental Acts

 
[3] Governmental Discretionary Function Analysis

 
§12.03 Defective and Dangerous Roadways

 
[1] Waiver of Immunity for Dangerous Roads

 
[2] Duty of Government to Remove Obstructions to Motorists' View on Private Property

 

                        

                                    

                                        
                                        
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